More on my fiction writing

September 25, 2012

Nullification redux

As every schoolchild once learned, at least before standardized testing, South Carolina precipitated the nullification crisis in 1832 by passing a law that said it could, essentially, pick and choose which federal laws would apply within the state. The immediate complaint was the tariff, but of course the deeper issues were slavery and state rights. And, as the child once learned, Old Hickory forced the South Carolina firebrands to back down, preserving the union.

What is less discussed is Andrew Jackson's situational approach to the rule of law. Indian Removal, one of the few national issues about which the Old Hero was specific and passionate, broke numerous solemn treaties and enacted theft and ethnic cleansing against the Five Civilized Tribes. When the Supreme Court finally found in favor of the Cherokee Nation, Jackson simply ignored it. Georgia and other Southern states wanted that improved and cultivated Indian land for plantations and the spread of slavery. Jackson was a slaveholder himself. He was also happy to allow South Carolina and other Southern states to ignore federal law when it furthered white supremacy. What he wouldn't countenance was secession, and hence the object lesson on nullification (and the tariff was modified anyway).

Which brings us to 21st century Arizona, the Crazy State. Prop. 120 asks voters to approve the following: "The State of Arizona declares its sovereign and exclusive authority and jurisdiction over the air, water, public lands, minerals, wildlife and other natural resources within its boundaries..." Exceptions are made for Indian reservations and federal land that had been "ceded" in a way, I suppose, Arizona decided was Constitutional. I am not making this up.

Of course, this is partly for show. Unlike South Carolina in the 1830s, Arizona is not raising troops to protect its state rights, and it lacks a John C. Calhoun. Today's conservatives love to make a show of pre-Civil War reenactment; think Gov. Rick Perry's talk about Texas secession, etc. etc. But they never seem to leave the union, too bad for us. One big reason is that most red states are net takers, getting back more in federal dollars than they send to D.C. in taxes. But talk of trampled state rights and infringed "sovereignty" helps keep the base agitated and angry.

According to a Capitol Media Services story in the Arizona Daily Star, most legislative supporters realize there's little chance that Congress would give the state control of the land. "Still, they say there is a good reason for Arizona voters to declare sovereignty over all that federal land, and it could make a difference, even without congressional
action, by forcing federal agencies to be more responsive to requests
to make use of those public lands." The sponsor, Rep. Chester Crandell, R-Heber, trots out the forest industry as an example, how it was killed off because of environmental rulings and thus the forests weren't thinned, resulting in terrible fires that burned spotted own habitat, blah, blah, blah.

Excuse me if I question the sincerity of the distinguished gentleman, but what the hell is he doing living in Heber anyway? The only reason the Mogollon Rim has all those "cabins" (i.e. subdivisions) is because of sleazy federal land swaps that accomplished what is the real dream of Prop. 120: A real-estate hustle. Imagine how many visions of "master planned communities" — with championship golf — are dancing in their heads if the state could get control of more land.

Logging was indeed a substantial part of the northern Arizona economy at one time, but it never made money by gently "thinning" the forests. That was when the population was miniscule and the scale of the industry was small. Beyond the spotted-owl ruling, the forests of the Southwest regenerate much more slowly than those in the Northwest and Canada, and the money for decades has been in large-scale clear-cutting. If the supporters of 120 are really interested in forestry, then I am Valinda Jo Elliott, stomping off into the wilderness with my survival gear of flip-flops, cigarettes, lighter and towel.

The proportion of public lands held by the feds in Western states is a long-standing grievance. I was raised to believe that. Now, I say, "Thank God!" It has been one restraining factor (another being water) keeping the most majestic parts of the state from being one big Prescott Valley. The offense to sovereignty has been land swaps that enriched a few connected players at the expense of the forests and the public. Years ago, I predicted that if the extremist Republican tide continued, we would eventually see Arizona's public lands sold off and National Parks and Forests privatized. We're not there yet. But the larger aspiration of Prop. 120 is clear.

Saddest of all, many people actually think these lands are owned by some elitist socialist bureaucrats in D.C. The concept of public lands, of a common trust for all of us and for future generations, eludes them.

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Well golly gee wilikers Mr. Talton...
how about some good AZ news?

State economists say Arizona will continue to add jobs for the balance of the decade. But for a lot of those jobs, the main qualification may be the ability to say, "May I help you?" ................. nearly three-fourths of the jobs Arizona will create between now and the end of the decade will be positions that require only a high school education - or less.

@Gary - I'll put in a plug here for Prop 119, the state trust land measure on the ballot. It's a small, much-needed step toward reform of our trust land system. It allows the state to exchange land parcels of equal value with the feds. It's a sensible measure and I worry that it will get caught up in the Prop 120 nonsense. I won't bore people with the details of trust land reform so just remember 119=good, 120=bad.

Interesting to hear rumors that the bloom is off the rose with "championship golf" as the boyz (Jon's term) are not enjoying such good business . . patronage is declining and costs are rising. Classic old geezer places like Rio Verde/Tonto Verde are suffering as more and more octogenarians want to cash out their memberships and head back to places like Minn-e-so-ta to be closer to family. We don't see these stories in print, usually, because they wouldn't be good for bizness. Does remind us that there's a trend cycle to most anything, huh?

It's all about money, of course. Arizona can't afford to properly manage the lands it now has jurisdiction of, much less tons more. Some comments from "What's On My Ballot?"

* * *

Proposition 120 destroys Arizona's iconic public lands heritage. The Legislature not only wants to grab "exclusive authority" over all parks, forests and public lands - including Grand Canyon and Saguaro National Parks, Superstition Wilderness Area, and millions of acres that Arizonans cherish and enjoy - it has indicated that once it has them, it will sell them off to private interests...

Proposition 120 is a budget disaster. Until the state manages to auction off your lands - and in a century they've managed to sell less than 10% of lands it already owns -- Arizonans will pay to manage them. All Americans now pay that bill. Proposition 120 puts the entire bill on the tab of Arizona taxpayers. You are being asked to pay more for what you already have."

* * *

The goal is to assert state control of public lands of national importance - forests, parks, monuments, wilderness areas, wildlife refuges and more - lands that are a defining feature of Arizona, which fuel our economy, support our wildlife heritage, and sustain our quality of life. Federal laws providing for critical environmental protections would also be undermined - laws like the Clean Air Act, the Endangered Species Act, and the Clean Water Act.

For years now, our state parks have struggled to stay afloat, relying on the generosity and stewardship of communities for support rather than the state. How can we expect our legislature to care for vast public lands such as the Grand Canyon and Saguaro National Park when they can hardly take care of their own?

Proposition 115 would destroy the present merit-selection system for selecting judges and let politicians control the judicial process...

The Arizona system has been praised by Justice Sandra Day O'Connor, and is a model cited by the U.S. Chamber Institute for Legal Reform (part of the U.S. Chamber of Commerce): "Arizona leads the nation with the procedures it has put in place to fulfill the promise of true nonpartisan `merit' selection."

* * *

In our current system, selection committees made up of fifteen private citizens, ten of whom are not lawyers, conduct extensive background investigations and interview applicants to evaluate their qualifications. Those citizen committees are required to recommend at least three candidates to the Governor for each vacancy on the Arizona Supreme Court, the Arizona Court of Appeals, and the superior courts in Maricopa, Pima and Pinal Counties. The nominees cannot all be members of the same political party. The Governor then appoints one of the nominees. This system has been a nationally recognized success.

Proposition 115 would increase partisan political influence and could reduce the quality of our judges. First, it would increase political control of the appointment of the selection committees by giving the Governor power to appoint fourteen of the fifteen members. Second, its requirement that selection committees nominate at least eight instead of three applicants could result in the appointment of less qualified or unqualified judges. Third, it allows all of the nominees to be members of the same political party. Fourth, it would subject judges to political pressure by allowing the Legislature to conduct hearings on judges who are on the voter retention ballot.

Because the implementation of appraisal caps always shifts taxation away from higher appreciating property to lower appreciating property, developers and large land owners will have some of their tax burden shifted over to owners of houses in medium and low income neighborhoods.

Side-note: I finally figured out the solution to the puzzle of why so much recent federal deficit spending (as a percentage of GDP) has had comparatively little effect. The solution can be found in a new comment at the end of the "Stealing Distance" thread by clicking here:

The Arizona "merit selection system" for county judges is a subterfuge for providing currently sitting superior court judges with veto power over applicants for judicial slots. Sandra Day O'Connor certainly would support a merit system which provided her with a life long appointment to a superior court judgeship. The Arizona judicial selection has won praises from other judicial organizations outside of Arizona who would love to avoid elections and being responsive to citizens and other participants of the judicial system who actually have to appear before them on a daily basis.

Arizona judges are a crucial part of the prison industrial complex. In Maricopa County, the badged-ego ran over individual citizens rights for more than two decades without any opposition from the bench. It wasn't until his abusive behavior focused upon a couple of judges themselves that judges appointed under the current system did anything to stop his conduct that has so damaged the reputation of Arizona.

Proposition 115 lessens the power of the state bar and hence the currently sitting superior court judges to veto applicants and thus mold behavior of participants of the judicial system. Most of those judges are former prosecutors or public pretenders who cowed to the court at their clients expense for remaining in the running for a judicial slot.

Judges should face elections with all the problems that they entail. The current "merit" system is an insider game that is being challenged by proposition 115.

No surprise that an arm of the US Chamber of Commerce supports the current "merit" selection process of county judges in Arizona. The current system provides the Arizona State Bar with tremendous influence and effective veto power over judicial selections. The state bar in Arizona is controlled and mostly responsive to the largest law firms who represent the largest corporations.

Durants formerly was a drinking place where sitting superior court judges and corporate representatives could meet informally to discuss stock market movements of their stock.

"As Arizona State University considers moving its law school from Tempe to downtown Phoenix, ASU officials say that for the plan to be financially feasible they would have to significantly increase law-school enrollment, raise tuition, enhance quality and launch a series of master's-degree programs.
...
"As a planning step, ASU officials today will ask the Arizona Board of Regents to approve a three-year capital-improvement plan that includes $129 million toward construction of a 294,000-square-foot law school in downtown Phoenix.
...
"In documents being presented to regents, ASU said the goal is to increase law-school enrollment and degrees by 50 percent.
...
"ASU also is moving to make the law school financially self-sufficient so that it doesn't rely on state funding, a shift that has led to higher tuition. The idea is that state money previously spent on the law school will go to other university programs...."

Total number of ASU graduates in the Class of 2011: 201
Total who obtained jobs with firms of more than ten attorneys: 21.

Superior Court judges are elected in all counties except Maricopa and Pima. In practicing in virtually every county in the State (with the exception of Santa Cruz), I can tell you that the most competent judges come from Maricopa and Pima Counties. The elected judges in the Superior Courts of other counties are terrible and routinely screw up even the most fundamental issues of law.

Granted, the pool of potential judges may not be as good as the pool in the more populous areas. However, we can look at the Justices of the Peace in Maricopa County, which are all elected, as a basis of comparison. In drawing upon the same pool of potential candidates for Justice Court as Superior Court, the Justices of the Peace in the Phoenix (again, elected officials) are pretty terrible and regularly screw up even the most fundamental legal issues. I have even had some expressly disregard the applicable law in favor of what they thought was most "fair" for their constituent who was in the courtroom (this pandering to the electorate is precisely why the Constitution took the appointment of judges away from the public on a federal level).

Granted, this is anecdotal, but a view that you will likely find shared by most attorneys. Why should attorneys opinions matter at all? We are certainly the segment of the population most acquainted with the judiciary to give you a good idea of who is good and who is not. That's why there are some attorney seats on the Merit Selection Committee, but it should be noted that there are more NON-attorney members than attorneys so the suggestion that the appointment of judges is controlled by the State Bar ignores reality. And on the whole, the elected judges (whether out-county Superior Court or metro-area JPs) are not as competent and skilled as the merit-selected judges. Perhaps the reason is debatable, but a logical explanation may just be that the public is not well suited to evaluate judicial skill. The evidence certainly supports this.

There should be no surprise that Justice O'Connor supports merit selection because she was instrumental in making that our process back when she was just a lowly State Legislator.

Finally, Superior Court judges do not have lifetime appointments contrary to the above comment. Superior Court judges are up for a retention vote every 6 years, so if a particular judge is really that bad, the public can vote them out then. The fact that retention is little more than a rubber stamp, notwithstanding the above alleged transgressions, further serves to demonstrate that the public, even with the voting power over judges, has almost no knowledge base to decide who is good and who is not.

Superior Court judges, as state employees, are subject to mandatory retirement at age 70. Federal judges get a lifetime appointment, and it perhaps should be mentioned that federal judges are appointed rather than elected. The idea that the public should be somewhat removed from election by the general public has been operating in this country for as long as it has been a country.

"The current 'merit' system is an insider game that is being challenged by proposition 115."

Bullshit. Here's the straight dope:

"Proposition 115... would increase political control of the appointment of the selection committees by giving the Governor power to appoint fourteen of the fifteen members... (and) it allows all of the nominees to be members of the same political party."

You can't get more "insider" than the state Governor controlling 14 of 15 deciding votes in judicial selection, and allowing all judicial nominees to be members of the same political party. The Republicans, who claim to hate one-party bureaucratic rule, certainly do take fondly to Bolshevist methods of gaming the system.

Note that the quote above was signed by fully 19 past Presidents of the Arizona State Bar (from 1971 through 2010).

Originally, the State Bar's official position was to leave merit selection of judges alone. But the writing on the wall was that some change was going to be approved by voters, so the Bar pushed for some changes to the initial versions of Prop 115. The former Presidents of the Bar only endorse Prop 115 because it was a compromise from a more onerous earlier version.

Sorry for being unclear, but the more onerous version that the powers wanted was to make judges open to full elections. The State Bar was adamantly opposed to that so this was the compromise, which as pointed out, puts even more power in the hands of the Governor. A dangerous game to play if you are a Republican as the pendulum will eventually swing otherwise.

My response to Jon's statement below to the kooks
( I borrow from the kooks )

What part of resources don't you understand?

"most legislative supporters realize there's little chance that Congress would give the state control of the land. "Still, they say there is a good reason for Arizona voters to declare sovereignty over all that federal land, and it could make a difference, even without congressional action, by forcing federal agencies to be more responsive to requests to make use of those public lands." The sponsor, Rep. Chester Crandell, R-Heber, trots out the forest industry as an example, how it was killed off because of environmental rulings and thus the forests weren't thinned, resulting in terrible fires that burned spotted own habitat, blah, blah, blah."

"The former Presidents of the Bar only endorse Prop 115 because it was a compromise from a more onerous earlier version."

They don't endorse it, they OPPOSE it. I quoted them in their comment from the "AGAINST" section of the ballot pamphlet twice above. Ditto for the five former Chief Justices of the Arizona Supreme Court.